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Susan M. v. Timothy Z.

Supreme Court of West Virginia

June 9, 2017

Susan M., Petitioner
Timothy Z., Respondent

         Cabell County 14-D-389


         Petitioner Susan M.[1] ("Mother"), by counsel Hoyt Glazer, appeals the September 20, 2016, order of the Circuit Court of Cabell County that affirmed the order of the family court denying her motion to reconsider her previous requests for modification of the parenting plan and for appointment of a guardian ad litem. Respondent Timothy Z. ("Father"), by counsel Jennifer Ransbottom, filed a summary response in support of the circuit court's order.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Mother and Father are parents to A.Z., who was born on December 18, 2011. By order entered in the Family Court of Cabell County, Mother was deemed the residential/custodial parent. The family court set a visitation and holiday schedule.

         On February 16, 2016, Mother filed a petition for modification and contempt of parenting plan in which she alleged that Father exercised holiday visitation in a manner contrary to the family court's order. Mother further alleged additional issues with the parenting plan including, inter alia, the following: Father cut the child's hair without Mother's consent; Father leaves the child with third parties "for extended periods (including overnights) during his parenting time, and does not allow [Mother] a right to see [her] during these times;" Father refuses to provide Mother with contact information when A.Z. is staying with "third parties" even though the parenting plan provides "that a parent may call the child at any time" and vice versa; Father does not inform Mother when or where he takes the child out of the Huntington, West Virginia, area; Father has refused to allow Mother to see the child on Mother's birthday; during the previous summer, Father scheduled his vacation time on Mother's only weekend with the child; Father has locked the child in her room, "prevent[ing] her from using the bathroom and/or leaving if an emergency arises;" and Father "has generally not allowed [Mother] equal participation in decision-making for their daughter." Mother alleged that Father has used the child as "a bargaining tool to obtain additional visitation time" and when additional visitation is given, Father "then leaves [the child] with a third party." Mother argued that, given the foregoing, "circumstances have substantially changed such that the current order does not provide adequate structure and guidance for the child's parenting plan."

         On March 21, 2016, Mother filed a supplemental petition for contempt alleging that Father refused to allow the child to visit with her over spring break even though the child was not yet in school and, as such, "spring break did not apply to the parties' custodial arrangement[.]" The supplemental petition further alleged that Father had taken the child to a home without informing Mother and that the child was returned to Mother with lice in her hair.

         On April 4, 2016, Father answered the petition in which he admitted cutting the child's hair, and also admitted, in part, and denied, in part, some of the remaining allegations, while denying others in their entirety. Father also filed a counter-petition for contempt in which, inter alia, he recounted specific instances when Mother interfered with his parenting time, spoke poorly of Father in A.Z.'s presence, and accused Mother of stalking him. Father requested that Mother undergo a mental evaluation "due to her paranoia, anger, stalking, lack of self control, threats of suicide, and manipulation of the minor child. If she is found to be mentally ill, then [Father] would ask for sole custody . . . with supervised visitation to [Mother]."

         On April 12, 2016, Mother filed a response to the counter-petition and, given Father's "serious allegations . . . including 'stalking' and mental instability, " also filed a motion to appoint a guardian ad litem for the minor child for the purpose of investigating Father's allegations and "interview[ing] the minor child, and all necessary collaterals, and provid[ing] the Court with a recommendation concerning this case."

         A family court hearing was conducted on April 14, 2016, during which Mother argued that modification of the parenting plan was warranted because there has been a substantial change of circumstances, including issues about the visitation and holiday schedule, allegations that the child has spent the night with third parties, and Father's serious allegations about Mother's mental health and that Mother "stalked" Father.

         By order entered May 26, 2016, the family court denied Mother's motion for modification, finding that there has not been a substantial change of circumstances that was not anticipated at the time the last order was entered. The family court further acknowledged that the parties have "issues" that need to be addressed as evidenced by the petition and counter-petition for contempt, and noted that the parties agreed to mediate the "issues."

         Thereafter, Mother filed a motion for reconsideration of the family court's order stating, among other things, that "several matters" were resolved in mediation but that "recent events have prompted concerns supporting reconsideration of the Court's ruling." In her motion, Mother stated that she is concerned that Father "continues not to exercise his parenting time with" the child, alleging that, during Father's vacation time with the child, the child did not stay with him but, rather, stayed with her grandparents without Father being present. According to Mother's motion, "[t]he child has expressed dread and extreme anxiety about visitation time with [Father]." Mother's motion for reconsideration was denied by order entered June 30, 2016. Mother appealed the family court's order to the Circuit Court of Cabell County, which affirmed the family court's order. This appeal followed.

         In this case, the Court is asked to review the final order of the circuit court that affirmed the family court's order denying Mother's motion for reconsideration.

In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an ...

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